In re Commitment of Franklin4/1/2004
his or her character, or (2) for a permissible purpose, such as showing the person acted with a plan, motive, absence of mistake. Its use is carefully regulated when the other acts are "bad acts" because the admission of such evidence may imply that the defendant is a bad person. Whitty v. State, 34 Wis. 2d 278, 292-97, 154 N.W.2d 557 (1967). As we said in Whitty, when other acts evidence is admitted, there can be "an overstrong tendency" to believe that a defendant is guilty of the crime charged simply because he or she is the kind of person who is likely to act a certain way, or that the defendant should be punished now, not necessarily for the crime charged, but because the defendant may have escaped punishment for a previous offense. Id. at 292.
. Wisconsin Stat. § 904.04(2) addresses evidence offered for a prohibited use and for a permitted use. When evidence is offered for a prohibited use, it is offered as relevant proof of acts that have already occurred by attempting to show that the person has a certain character and the acts denied are consistent with his or her character. State v. Veach, 2002 WI 110, , 255 Wis. 2d 390, 648 N.W.2d 447. As the statute explains, "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith . . . ." Section 904.04(2) (emphasis added). Additionally, in a permitted use of other acts evidence, e.g., to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," § 904.04(2) evidence again is offered to prove whether the defendant did or did not do a past act. State v. Anderson, 230 Wis. 2d 121, 129-30, 600 N.W.2d 913 (Ct. App. 1999). Therefore, in each instance, § 904.04(2) looks back to analyzing proof of acts that have already occurred. It does not look forward to assess the substantial probability of future conduct, which is the relevant question here.
. We can reasonably presume that the legislature chose the statutory words carefully. Ball, 117 Wis. 2d at 539. Therefore, its use of the past tense, consistent with the lack of a prospective quality to the statute, evidences unambiguous legislative intent to restrict the application of Wis. Stat. § 904.04(2) to analyzing evidence used to prove past acts.
. We also note that the use of prior acts has provided proof where future conduct is the focus of other types of proceedings. For example, in actions to terminate parental rights, a parent's past conduct is offered not to prove that the parent is a bad person, but to illuminate the reasons why the parent is unable or unwilling to establish a parental relationship or adequately care for the child in the future. See Wis. Stat. § 48.415 (2001-02); State v. Quinsanna D., 2002 WI App 318, , 259 Wis. 2d 429, 655 N.W.2d 752 (concluding that evidence of the parent's past criminal conduct and resulting incarceration is relevant to the parent's failure to establish a substantial parental relationship with her children and why that failure continued); La Crosse County Dep't of Human Servs. v. Tara P., 2002 WI App 84, , 252 Wis. 2d 179, 643 Wis. 2d 194 (concluding that evidence of a parent's failure to meet specific conditions necessary for the return of her children was relevant to proving whether there is a "substantial likelihood" that the parent will be able to meet those conditions within the requisite time period). In Tara P., the court of appeals explained,
In determining whether "there is a substantial likelihood" that a parent will not meet conditions for the return of his or her children, a fact finder must necessarily consider the parent's relevant character traits and patterns of
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